Assuming I already knew that they had a peanut allergy, and my intention was to hurt them, but not necessarily to kill them.

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    Related: eggshell skull. en.wikipedia.org/wiki/Eggshell_skull Jan 31, 2020 at 22:13
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    Throwing peanuts is unlikely to kill someone, but kissing someone after eating peanut butter can. independent.co.uk/news/world/americas/…
    – Mattman944
    Jan 31, 2020 at 22:36
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    @Mattman944 a friend of mine went through something similar in his car where one of his friends, severely allergic to tomatoes, kissed his new gf that ate something containing tomatoes many hours earlier. They had to do a trip to the ER, but it ended up ok.
    – Thomas
    Jan 31, 2020 at 23:01
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    – Richard
    Feb 1, 2020 at 0:38
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    @Criggie why not throw peanuts at people? Seems like an amusing exercise. It's like throwing popcorn, except more nuts.
    – Kaithar
    Feb 2, 2020 at 22:04

7 Answers 7


You don't specify a jurisdiction but taking the US as an example, yes you could be charged with 2nd Degree Murder - you intended to harm them but not specifically to kill them:

A second situation that constitutes second-degree murder is where the perpetrator intends only to cause serious bodily harm but knows that death could result from the act. For example, in the situation above, instead of shooting Bill, Adam grabs a shovel and whacks Bill in the head with all his strength. While Adam didn't specifically intend to kill Bill when he hit him, he did intend to strike him with the shovel knowing that such a blow to the head carried with it a distinct possibility of death. Adam killing Bill in this way would be classified as murder in the second degree.

In English law you'd be facing charges for Voluntary Manslaughter

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    Wouldn't it be plausible for a prosecutor to charge the accused with 1st degree murder in case they can convince the court that they actually had the intention to kill and that the claim they just wanted to hurt them is just a defense strategy, but then the court only convicts for 2nd degree murder / voluntary manslaughter.
    – Philipp
    Jan 31, 2020 at 14:55
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    @Philipp: The prosecution would have to have some sort of evidence that the elements of first degree murder were all there, including intent. Otherwise the court will likely grant a motion to dismiss. The exact details, and the standard to be met, might be different in different jurisdictions. But a prosecutor can't just charge whatever he wants and wait to see what the jury will believe; they have to be able to convince the court that they have something to back it up. Jan 31, 2020 at 20:13
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    Shouldn't it be Involuntary manslaughter? Link says: "the killer did not intend for a death to result from their intentional actions. If there is a presence of intention it relates only to the intent to cause a violent act which brings about the death, but not an intention to bring about the death itself." which seems more fitting.
    – JoL
    Feb 1, 2020 at 0:05
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    @JoL This answer is almost definitely wrong for UK law. You would be charged with murder, not manslaughter. In English law, an intention to cause serious harm (that ends up resulting in death) is sufficient. Furthermore, being reckless as to the risk of death can also be sufficient. A reasonable person would know that throwing peanuts at someone with an allergy could kill them.
    – JBentley
    Feb 2, 2020 at 21:32
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    @JoL Also consider the thin skull rule, which states that you must take your victim as you find them. If you intentionally want to hurt someone with a peanut allergy, and it turns out the allergy is much worse than you suspected and they die, that is your bad luck.
    – JBentley
    Feb 2, 2020 at 21:38

The exact charge depends on the jurisdiction. In Wisconsin, this would not be first-degree or second-degree intentional homicide, both of which include the language:

Whoever causes the death of another human being with intent to kill that person or another...

Since there was no intent to kill, this would not apply. (Whether the prosecutor believes that there was no intent is another story; it wouldn't be surprising to have this be charged.)

It would, however, be felony murder, as battery is one of the crimes which triggers it.

It would also be reckless homicide. Whether it is first-degree or second-degree depends on whether it was under "circumstances which show utter disregard for human life."

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    But how does the defendant establish a lack of intent to kill? When the defendant did something known to be lethal. The defendant would have no credibility to say "didn't know that could kill". Feb 1, 2020 at 0:10
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    @Harper-ReinstateMonica The defendant doesn't have to establish a lack of intent to kill. The prosecution must establish every element of the offense beyond a reasonable doubt. This burden is entirely on the prosecution. Feb 1, 2020 at 0:36
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    @Harper-ReinstateMonica You can't read the words "or reasonably should have known" into a criminal law if they aren't there. The jury might not believe that someone didn't know if it's totally unreasonable that they didn't know, but that's a separate thing.
    – D M
    Feb 1, 2020 at 3:32
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    @Harper-ReinstateMonica OK, can you point to Wisconsin case law that says "reasonably should have known" is good enough for intentional homicide in this sort of case? I don't think you'll be able to, since someone who "recklessly causes the death of another human being under circumstances which show utter disregard for human life" is guilty of first degree reckless, not intentional, homicide.
    – D M
    Feb 1, 2020 at 14:27
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    @Harper-ReinstateMonica You are confusing two completely different things, what facts have to be established beyond a reasonable doubt and how those facts can be established at trial. If an intent to kill is an element of the offense, and it is, then the prosecution must establish that beyond a reasonable doubt at trial. What evidence they can use to establish that and what conclusions the jury can draw from that evidence does not change what needs to be established and what the burden is on the prosecution is to establish it. Feb 1, 2020 at 19:30

@motosubatsu answered that you could be charged with 2nd degree murder because, as you also said, you "intended to harm them but not specifically to kill them".

But this is not accurate, and you could be charged with 1st degree murder, because what you "wanted" or even "expected" to happen does not equate to your "intention".

Intention is what a reasonable person (which in practice is whatever the jury decides) would expect is likely to happen as a result of the action taken, considering all of the circumstances (including your knowledge of their allergy).

So it would be up to a jury to decide:

  1. Whether you had knowledge of their allergy, and
  2. Whether their death was likely to occur as a result of your action

So if the jury decided that you knew about the allergy, and that you threw the peanuts, and that a reasonable person would think their death was likely to occur as a result, then it doesn't matter that you say after the fact that you "only wanted to harm them, not kill them", even if it is the truth, because the jury would have concluded that any reasonable person would have expected them to die as a result of the action, and so would only have taken the action if they wanted the person to die.

Note: This answer assumes that throwing peanuts at someone would likely result in their death to illustrate my understanding of "intention", but as far as I understand allergens, allergens cause the skin that they touch to swell, so allergies only cause death when the allergen is consumed through the mouth, which causes the tongue and throat to swell, which prevents breathing and causes the person to die from anaphylaxis.

It's like shooting someone in the leg which then results in their death, and saying that you only wanted to hurt them and did not expect they would die when you took that action. The point is that it's not about what you expected to happen, it's about what a jury decides a reasonable person would expect to happen in that situation (which could go either way).


Although you had another location in your mind, I'll cite German law.

There are several kinds of "homicide" law paragraphs, divided by intent.

  • If you didn't have any intent of harming, you have "Fahrlässige Tötung (§ 222 StGB)", which roughly translates to "Negligent homicide".
  • XY mit Todesfolge (several §§) can apply to several other criminal acts, e. g. rape, battery, etc., where a consequence of your deed is the death of the other person
  • "Totschlag" is manslaughter, which is killing by intent
  • "Mord" is killing by intent with additional qualifying properties for murder, see Murder in German law in the Wikipedia.

In the case which is described, it would probably qualify as "Körperverletzung mit Todesfolge" (§ 227 StGB): you intended to hurt the other person, but not to kill them.


It's malice, so it's murder

Malice is a desire to kill, or cause serious bodily harm (without killing them), or have reckless indifference to the danger you create. The problem is, if they actually die, that proves the danger was created and was real. Now you're up the creek; if you protest that you didn't know the danger was real, that demonstrates reckless indifference.

(unless, there was widely believed to be no danger; i.e. if the victim had had peanut allergies five times before and only got red eyes and sniffles, and didn't need further treatment, and was told by the doctor not to bother carrying an epi-pen. Then, it would be a surprise to everyone, and you could defend against a reckless indifference claim.)

This is a doctrine of law called the "eggshell skull". That concept is mainly discussed in civil law, but it applies in criminal law even moreso: If you criminally set into motion a series of events, then your shoulders bear the weight of the entire course of events, all the way to the outcome. And the outcome decides your charge. If a person dies, it's in the manslaughter/murder family.

If you beat somebody up and don't know about a blood condition that prevents healing, that's on you. If you punch someone in the nose who has severe osteoporosis and cave the skull in with a normal blow, your fault. If you roadrage someone and send them careening into a semi and they die, you go down hard. If you DUI and kill someone, it's not DUI, it's manslaughter or murder.

Once you've committed the act, it's out of your control. You ride the consequence train to wherever it goes.

Besides, if it wasn't that way, every defendant would claim to not mean to kill the victim. "I did not realize humans needed oxygen to survive".

Premeditation is separate

Once the basic type of crime is decided, then it may be "enhanced" by the idea of "aforethought", i.e. forming a plan in your mind to do the crime prior to doing it. That's the difference between murder one and murder two, in jurisdictions which call it that.

Note that courts have not set any lower limit to how much time constitutes "aforethought". It doesn't mean months or days of planning; one can develop aforethought in the minute before the crime. Being enraged, and going to the kitchen to grab a peanut could be aforethought, because grabbing the peanut is preparation.

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    "If you DUI and kill someone, it's not DUI, it's manslaughter or murder..." unless you happen to be wealthy or famous.
    – barbecue
    Feb 1, 2020 at 20:24
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    "Being enraged, and going to the kitchen to grab a peanut" - just imagine this scene: a guy goes mad at someone, he goes to the kitchen and you see all sorts of knives etc. but he grabs a peanut instead and comes back to throw it in the face of the other guy (in a movie that would be comic)
    – Rafalon
    Feb 3, 2020 at 7:54
  • You should specify the jurisdiction this applies to, as precise definitions of murder vary.
    – Stuart F
    Jun 10, 2022 at 14:34
  • @StuartF Done per your request. Had to research how to do tags :) Jun 10, 2022 at 19:40

In Oregon, Under Some Circumstances

The law on criminal homicide is complicated, but the factors that apply include:

  • The degree of criminal culpability (intentionally, knowingly, recklessly, criminally negligent or none of those)
  • Who the victim is
  • Special circumstances, such as escaping from prison

When the Victim is Under the Age of 14

One of the circumstances under which killing someone becomes second-degree murder in Oregon is when someone who is attempting to commit certain serious crimes kills someone “in the course of and in furtherance of the crime the person is committing or attempting to commit, or during the immediate flight therefrom.”

The list of crimes that lead to this includes attempting to (by reference) “Intentionally or knowingly [cause] serious physical injury to another” and killing a child under 14 years of age. The affirmative defense in ORS 163.115(3) would not apply, since the defendant themselves committed the homicidal act.

“Serious physical injury” is defined as “physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” In this case, you say that the intent was to “hurt” the person, so, if the jury finds that the defendant knew they would cause a serious physical injury, the “knowingly or intentionally” requirement is met.

Another way that causing the death of a child under the age of 14 would become second-degree murder is if the killer acts “recklessly under circumstances manifesting extreme indifference to the value of human life,” and they have a pattern of “one or more previous episodes” assaulting or torturing children.

If the Victim is Older

Without another aggravating circumstance, a criminal homicide would only be murder “When it is committed intentionally, except that it is an affirmative defense that, at the time of the homicide, the defendant was under the influence of an extreme emotional disturbance.”

“Intentionally” is defined as, “a person acts with a conscious objective to cause the result or to engage in the conduct so described.” You say that this is not the case here.

A jury might find the defendant guilty of Manslaughter if they find that the defendant killed someone through recklessness, or Criminally Negligent Homicide for killing someone through criminal negligence.

In Practice

Prosecutors in Oregon often charge a lesser offense than they could, as part of a plea bargain or because the mandatory minimum sentence for the greater offense seems excessive.


If you did it knowing full well the person was allergic, then yes (in most civilized jurisdictions around the world.)

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